This edition of ‘From the Court Corridor’ curates the notable pronouncements of the Appellate Division (AD) and the High Court Division (HCD) of the Supreme Court (SC) of Bangladesh in January 2023.
HCD Redefines Parental Identity in Student Information Forms
In a landmark judgment on 24 January 2023, the High Court Division (HCD) of the Supreme Court of Bangladesh ruled that it will be sufficient for students filling out Student Information Forms (SIF) for examinations to mention their mother’s names only and cannot be compelled to include their father’s name against their will. The court also declared it illegal and unconstitutional to deny admit cards to Secondary School Certificate (SSC) and Higher Secondary Certificate (HSC) candidates who omit their father’s name in the SIF.
The HCD bench, comprising Justice Naima Haider and Justice Md Khairul Alam, delivered this verdict while emphasizing that all citizens have the constitutional right to education and employment and depriving them of education due to the omission of this information violates their fundamental rights enshrined in the constitution.
Deputy Attorney General Amit Das Gupta highlighted that the government had previously taken steps to allow students to complete SIFs with the name of their father, mother, or any other legal guardian. He emphasized that there is no clause that requires the father’s name to be included in the SIF.
The origin of this judgment can be traced back to April 2007, when the Rajshahi Education Board refused to issue an admit card to an SSC examinee from Thakurgaon due to the student’s inability to provide her father’s name in the SIF. The girl had been raised solely by her mother after her biological father abandoned them.
Subsequently, on 2 August 2009, three human rights organizations, namely the Bangladesh Legal Aid and Services Trust (BLAST), Bangladesh Mahila Parishad, and Naripokkho, jointly filed a writ petition seeking legal guardianship of mothers in such cases.
In response to the petition, another HCD bench issued a rule on 3 August 2009, asking the government to explain why the refusal to issue admit cards to candidates who cannot provide the names of their fathers on the SIFs should not be deemed illegal. The court also directed the authorities to consider amending the SIFs to include identification information regarding the names of the candidate’s father, mother, or legal guardian.
This recent judgment has far-reaching implications as it grants mothers the status of sole legal guardians of their children. Renowned human rights activist barrister Sara Hossain stated that it is no longer mandatory to write the father’s name on forms for admission, registration, and examination at schools and other educational institutions.
Lawyers and human rights activists applaud the HCD verdict as a significant step forward for gender equality. It saves single mothers from having to deal with the complications of filling out official documents. By allowing the inclusion of any parent’s or legal guardian’s name, the decision marks a significant departure from the previous requirement that students fill out the “father and mother” fields in their SIFs.
This historic judgment recognizes changing societal dynamics and upholds gender equality principles, reinforcing all citizens’ constitutional rights to education and employment. The decision paves the way for a more inclusive and equitable educational system, empowering single mothers and ensuring that no student is discriminated against because of their parental status.
SC Mandates Tk 24 Billion Settlement by Bangladesh’s Telecom Leaders
On 16 January 2023, the Supreme Court directed the country’s major mobile network operators (MNOs)—Grameenphone, Robi, and Banglalink to pay Tk 24 billion in dues. The verdict, announced on 10 January, by a five-member bench of the Appellate Division, has significant implications for the nation’s telecom industry and government revenue.
The ruling’s core demand is that MNOs include Value Added Tax (VAT) in the amounts payable for license renewals and spectrum purchases. Previously, the companies had been paying their dues by including 15% VAT, significantly reducing the actual amount owed. The Supreme Court’s decision effectively puts an end to this practice, ensuring that the government receives its full share of the spectrum fees and license charges, amounting to Tk 2,413 crore.
The Bangladesh Telecommunication Regulatory Commission (BTRC), responsible for overseeing the telecom sector, played a pivotal role in pursuing the dues owed by the operators. BTRC Chairman Mohiuddin Ahmed emphasized that the collected dues were the people’s money and stressed the necessity for the MNOs to settle their obligations promptly.
The legal battle leading up to this landmark judgment was characterized by complex arguments and counterarguments. The MNOs challenged the imposition of VAT in a case filed with the HCD. The initial ruling favored Grameenphone and Robi, granting them a rebate facility on the VAT they owed, while Banglalink was not granted this benefit.
However, the BTRC, the National Board of Revenue (NBR), and the MNOs filed separate appeal petitions, which ultimately led to the Appellate Division’s decisive verdict. The court ordered all three major operators to pay VAT on their outstanding dues without the option of a rebate.
Bangladesh’s telecom sector has been rapidly expanding, and the funds collected from the operators play a crucial role in supporting various public welfare initiatives. The Supreme Court’s ruling reinforces the commitment to ensure that the country’s telecom industry operates in compliance with the law and contributes fully to the nation’s development.
The Supreme Court’s judgment is, in fact, a turning point for Bangladesh’s telecom industry, settling long-standing disputes and clarifying the operators’ obligations to the government. The ruling will have a profound impact on the telecom sector’s operations and its contributions to the nation’s development. With the BTRC’s commitment to ensuring full compliance with the verdict, the future of Bangladesh’s telecom landscape promises to be even more dynamic and progressive.
HCD Overrules Education Ministry Circular and Orders Admission of 41 Students Including Some Twins
In a significant legal development, the HCD of Bangladesh has suspended the effectiveness of an education ministry circular and directed the authorities of Viqarunnisa Noon School and College to admit 41 students into Class 1 for the academic year 2023. The order came as a result of a writ petition filed by the parents of these students, seeking the necessary directives to secure their admission.
The 41 students seeking enrollment in the institution were either twins or siblings of current students already studying there. Their applications were submitted in accordance with the Private School, School and College (Secondary, Lower Secondary, and Attached Primary Level) Students Admission Rules, 2022.
However, the education ministry issued a circular on 16 January, stating that only 5% of students beyond the total seats would be allowed admission into entry-level and other classes at private institutions. This circular posed a challenge for the 41 children, as they could not secure admission under these new conditions that were not applicable when they initially applied.
The HCD addressed this concern and temporarily suspended the effectiveness of the circular of 16 January. In addition, the court issued a rule requiring the government to explain why the relevant provisions of the circular should not be declared illegal.
The High Court’s suspension of the circular came as a relief for the 41 students and their parents as it enabled their immediate admission to Viqarunnisa Noon School and College. Moreover, the court’s ruling has wider implications as it questioned the validity of the 5% provision for private institutions. This decision reflects the judiciary’s commitment to ensuring fairness and equal opportunities in education, particularly in the context of private schools.
The court has also asked the relevant authorities, including the education secretary and primary and public education secretary to respond to the rule within one month indicating a thorough review of the contentious circular. The judgment is a legal victory for students and their families, emphasizing the judiciary’s role in protecting students’ rights and ensuring an inclusive education system in Bangladesh. It emphasizes equal opportunities and access to quality education for all students regardless of socioeconomic background. This decision sets a precedent for future education policies and regulations by recognizing the fundamental right to education and promoting more equitable outcomes.
HCD Seeks End to Illegal Use of Handcuffs and Bar Fetters on Prisoners
In a significant legal move, the HCD has issued a notice to halt the illegal practice of using handcuffs and leg irons on prisoners. The notice was sent to various officials, including the Senior Secretary of the Ministry of Home Affairs, the Secretaries of the Ministry of Law, Justice, and Parliamentary Affairs, the Inspector General of Police, and the Inspector General of Prisons. The court was responding to a writ petition filed in 2019 by ten Supreme Court lawyers on behalf of Human Rights and Peace for Bangladesh (HRPB) seeking necessary orders in this matter.
The petitioners’ lawyer, Asad Uddin, emphasized the need to end the abuse of handcuffs and leg irons within 15 working days and called for the formulation of a policy regarding their use. He cited instances of convicted criminals attending events like funerals in restraints, as reported in the media, and pointed out that such incidents have drawn significant public attention and criticism.
Asad Uddin referred to relevant laws to support his argument, including Regulation No. 330 of the Police Regulation of Bengal, 1943, which emphasized that prisoners should not be subjected to more restraint than necessary to prevent escape. The use of handcuffs and ropes is deemed unnecessary, and women or individuals who can be easily and securely kept in custody due to age or infirmity should not be handcuffed. Witnesses arrested under Section 171 of the Code of Criminal Procedure should not be subjected to restraint either.
In a related development, the HCD has asked the government to explain, within four weeks, why a high-powered committee should not be formed to recommend appropriate guidelines for the use of handcuffs and bar fetters. The court has also sought explanations on the legality of arbitrarily using such restraints and why appropriate compensation should not be paid to two under-trial prisoners, Md Ali Azam Khan and Selim Reza, who were subjected to handcuffs and bar fetters while attending their mothers’ funeral prayers.
The incidents triggered public outrage and were deemed to be a violation of human rights and a punishable offense by human rights bodies. The court’s intervention reflects its commitment to upholding constitutional rights and ensuring a just and fair legal system in Bangladesh. The High Court’s actions are expected to have a positive impact on the protection of prisoners’ rights and contribute to a more equitable and humane criminal justice system in the country.
